DONALD PUBLICOVER, Employee/Appellant, v. VOLTELCON and HARTFORD SPECIALTY RISK SERVS., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 21, 2003
PRACTICE & PROCEDURE - ADMISSION OF EVIDENCE; PRACTICE & PROCEDURE - REMAND. Where the judge=s denial of benefits was based importantly on his conclusion that the employee was not a credible witness, where the compensation judge had received into evidence without objection the employee=s offer of a transcript of his pre-trial deposition testimony in support of his own credibility, and where that transcript had not been among exhibits ultimately reviewed by the judge in his reaching of his decision, the compensation judge=s decision was vacated and remanded to the judge for redetermination after review of the complete record.
Vacated and remanded
Determined by Pederson, J., Johnson, C.J., and Rykken, J.
Compensation Judge: James R. Otto
WILLIAM R. PEDERSON, Judge
The employee appeals from various findings of the compensation judge, including the judge=s determination that the employee=s testimony lacked credibility. We vacate the judge=s Findings and Order and remand the matter for redetermination.
On July 7, 2000, Donald Publicover [the employee] sustained an injury to his left ankle while employed as a cable TV lineman by Votelcon [the employer]. The employee evidently reported the injury to his supervisor the following day but continued to perform his regular activities at work. About two weeks later, on July 20, 2000, he saw his family physician, Dr. Terrence Dunklee, who reported that the employee had injured himself when he Astumbled at work . . . in process of clean up@and that A[i]t has been somewhat uncomfortable since then but he has been working with lace up boot and functioning normally. It has not been particularly swollen. He denies any tingling or numbness in the toes.@ Noting no swelling and a normal range of motion, although there were some complaints of pain with resistence laterally, Dr. Dunklee diagnosed a Amild ankle sprain improving.@ The employee continued thereafter to perform his normal duties for the employer without additional medical treatment or loss of time from work through October 3, 2000, when he accepted a similar job at a firm named RJE, where he continued to work without injury-related loss of time for about another year.
On September 12, 2001, about fourteen months after his work injury, the employee returned to Dr. Dunklee=s office with complaints of left ankle pain off and on since the date of the work injury. X-rays revealed a small osteochondroma arising outside of the base of the second proximal phalanx, mild degenerative changes at the first metatarsal phalangeal joint with joint space narrowing, and a calcaneal spur at the attachment of the Achilles tendon. There was also some apparent soft tissue swelling along the plantar surface of the foot near the metatarsal heads, and Dr. Dunklee diagnosed a recurrent ankle sprain. On October 10, 2001, the employee was examined also by orthopedist Dr. Richard Ivance, to whom the employee reported injuring his left foot and ankle in July of 2000 when A[h]is left foot caught on something and he was thrown forward, everting his left ankle,@and A[h]e had immediate severe pain on the lateral aspect of his left ankle. . . . and continuous pain on the lateral aspect of his left foot since that time.@ After examination, Dr. Ivance diagnosed a severe sprain of the peroneal tendon of the left ankle related to the work injury of July 7, 2000, and administered a cortisone injection.
On December 27, 2001, the employee filed a claim petition for unspecified workers= compensation benefits beginning October 1, 2001, causally related to the work incident of July 7, 2000. In its answer filed January 22, 2002, the employer admitted a temporary ankle sprain on July 7, 2000, but denied liability for any disability or medical benefits claimed by the employee. On January 30, 2002, the employee filed also a rehabilitation request for a rehabilitation consultation and services.
On February 12, 2002, the employee was examined by foot and ankle specialist Dr. Lowell Lutter, to whom he reported a July 2000 inversion injury of the left foot with Aa severe amount of numbness and dysesthesia at the initial outset,@ with continuing lateral foot pain and an onset of severe lateral burning in June of 2001, alleviated only for about two months following the steroid injection administered by Dr. Ivance. Dr. Lutter diagnosed inversion injury with intermetatarsal ligament strain and probable digital nerve compression, and on February 20, 2002, the employee underwent a digital nerve block between the fourth and fifth toes, following which Dr. Lutter recommended exploration and neurectomy of the 4-5 interdigital nerve.
On March 19, 2002, the employee was examined for the employer and insurer by Dr. Nolan Segal, whom he informed that, at the time of his injury, his ankle had rolled over and Aburned@ considerably. After interview and examination of the employee and his medical records, Dr. Segal concluded that the employee may have sustained a very mild ankle sprain on July 7, 2000, but that he had clearly recovered from that sprain and had no evidence of any residuals. Noting that the employee had had problems in the past with neuromas in his left foot, and finding no evidence of any abnormalities in the employee=s left ankle and the employee=s complaints to be in an area different from those involved at the time of the work injury, Dr. Segal concluded that the need for any neuroma surgery as recommended by Dr. Lutter had nothing to do with the work injury of July 7, 2000.
The employer and insurer=s third party administrator had contested the employee=s rehabilitation request, and the matter came on for an administrative conference on March 20, 2002. Follow that conference, an arbitrator at the Department of Labor and Industry concluded that the employee=s work injury of July 7, 2000, was a substantial contributing factor in the employee=s need for the disputed rehabilitation services and ordered that those services be provided. The employer and insurer eventually filed a request for formal hearing
On March 27, 2002, Dr. Lutter=s associate, Dr. Diane Palkert, performed an excision of the interdigital nerve between the fourth and fifth toes on the employee=s left foot. In a report to the employee=s attorney on May 17, 2002, Dr. Palkert related that the employee advised her that his injury at work had occurred as A[h]e was coming down a pole and twisted his left foot and ankle.@ She noted that the employee had reported an immediate onset of Aburning@ in his foot and ankle and continuing problems in his foot and ankle ever since. On examination, the doctor found a positive Tinel=s sign over the superficial peroneal nerve, with radiation of pain down into the lateral border of his foot, concluding that
[t]his finding as well as [the employee=s] continued complaints of burning in the foot and ankle lead to the possibility of a superficial peroneal nerve injury or stretch caused by the original twisting. His initial complaint was of burning in the foot and ankle and the mechanism of his injury could have certainly injured this nerve.
Dr. Palkert explained that the employee=s recent surgery to remove a neuroma Ais actually related to the superficial peroneal nerve injury.@ She could not explain why the employee was able to work for a year following the injury, Aexcept that the nerve irritation can get worse with time,@ and the employee may have irritated the nerve walking on uneven ground or climbing the rungs of a ladder. She added that there was no clinical or radiographical evidence of any instability or weakness or swelling in the ankle.
The matter of the employee=s entitlement to rehabilitation services came on for formal hearing before a compensation judge on June 5, 2002. The essential issue before the judge was the nature of the employee=s injury of July 7, 2000, and whether that injury was a substantial contributing factor in any current need of the employee for rehabilitation services. Evidence introduced at trial included the employee=s own testimony, the records and opinions of the employee=s treating physicians, and the records and opinions of the employer and insurer=s examining physician, Dr. Segal. On cross examination of the employee, counsel for the employer and insurer several times attacked the employee=s credibility, in part by reference to various brief excerpts from a discovery deposition of the employee taken on March 19, 2002. Eventually the employee=s attorney himself offered into evidence the transcript of the deposition in its entirety. The transcript was marked and received as Employee=s Exhibit 12.
In a Findings and Order issued June 20, 2002, the compensation judge concluded in part that the employee was not fully credible and that the employee=s injury of July 7, 2000, was a mild left ankle strain/sprain condition that fully resolved shortly after it occurred. Largely on those findings, the judge denied the employee=s claim for rehabilitation benefits. In the memorandum accompanying his decision, the judge explained that he agreed with the employer and insurer=s contention Athat any medical opinion supporting a [finding of] causation between [the employee=s] incident of injury on July 7, 2000 and his subsequent left foot problems [is] without proper foundation and must be disregarded.@ The employee appeals.
On appeal, the employee asserts that the judge=s credibility assessment was erroneously affected by improper impeachment techniques by opposing counsel and that the judge erred also in allocating to the employee the burden of proving his own credibility. While we are not in the end persuaded by these arguments, we are compelled to vacate the judge=s Findings and Order, having discovered in our review clear evidence that the judge did not consider an element of the record that is clearly material to the issue of the employee=s credibility, which in turn the judge expressly made substantial to his decision. We therefore remand the matter to the compensation judge for reconsideration after review of the complete record.
On appeal to this court, both parties refer extensively to the employee=s deposition testimony, offered into evidence as Employee=s Exhibit 12. In our initial review of the record, we discovered that Exhibit 12 was not contained in the file. In our efforts to locate the exhibit, this court eventually discovered that the original of the exhibit remained in the file of counsel for the employer and insurer, having apparently not been left with the compensation judge at the conclusion of the hearing. Clearly, the compensation judge did not consider this exhibit in the course of his deliberations, although it had been offered into evidence specifically in defense of challenges to the employee=s credibility. Because both parties clearly rely extensively on the exhibit in developing their positions, and because the exhibit is therefore evidently crucial to the compensation judge=s assessment of the employee=s credibility, we are compelled to vacate the judge=s Findings and Order and remand the matter for redetermination.